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The Patent System in Korea

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  • The Patent System in Korea
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[Requirements for acquiring patent rights]
A patent must have industrial applicability; it must be usable in industry.
The technology must have novelty; it must not be known to the public (prior art) before an application is submitted.
The technology must have an inventive step; it must not be easily derivable from prior art, even though it differs from prior art.
[Effect and term of a patent right]
The term of a patent right commences when the establishment of patent right is registered; it ends 20 years after the filing date of the patent application. The corresponding term for a utility model is 10 years.
The effect of a patent right is subject to the principle of territoriality; that is, it is valid only in the country where the right is obtained.
[Patent examination system]
Accelerated examination system
According to Article 61 of the Patent Act, the commissioner of the Korean Intellectual Property Office may direct an examiner to examine one application in preference over another if it falls under any of the following types or circumstances:
(1) Where a person, other than the applicant, is commercially and industrially working the invention claimed in a patent application after the laying-open of the application; or
(2) Where the commissioner of the Korean Intellectual Property Office deems it necessary to urgently process a patent application prescribed by Presidential Decree:
Deferred examination system
If necessary, applicants can request a deferred examination within nine months from the date of the examination request. The applicant can also choose the date of the deferred examination which must take place at least two years after the examination request and within five years of the application date. The applicant will receive the first office action from KIPO within three months of the deferred examination date.
Divisional application
An applicant who has filed a patent application comprising of two or more inventions may divide the application into multiple applications.
Converted application
An applicant can convert a patent application to a utility model application or vice versa within thirty days of the date on which the applicant received a certified copy of the first decision of rejection.
Priority claim under a treaty
The system of making a priority claim under a treaty is recognized by the Paris Convention and by the member countries of the WTO. Whenever an application filed in one country is filed again in another member country within a year of the first filing, the filing date of the subsequent application is deemed to be the filing date for the original application.
Claim for domestic priority
An applicant may make a priority claim based on an invention described in the specification or drawings initially attached to an earlier application of a patent or utility model registration within a year of filing the earlier application for which he/she has the right to obtain.
Ex officio amendment
If an examiner determines that an application is patentable but there are clear clerical errors in the specification, drawings, or abstract attached to such patent application such as misspellings or wrong reference numbers, the examiner can make an ex officio correction of the error without having to request the applicant to submit a written opinion (for decisions of registration made after July 1, 2009).
Request for reexamination (before a trial)
Under the revised Patent Act, if an examiner rejects an application, the applicant can simply request a reexamination after amending the description or drawing(s). Previously, upon receiving a decision of refusal, an applicant had to appeal the examiner's decision and amend the description or drawing(s) for examination before a trial.